New Straits Times - - Letters -

THE Court of Ap­peal re­cently an­nounced that a Mus­lim child con­ceived out of wed­lock can use his bi­o­log­i­cal fa­ther’s name as his sur­name.

Fraught with con­tentious views over how an il­le­git­i­mate child should be named ac­cord­ing to syariah law and its in­ter­pre­ta­tions, the de­ci­sion came across as a bold land­mark rul­ing, turn­ing the cor­ner in favour of in­no­cent chil­dren, who are of­ten forced to en­dure the con­se­quences of their par­ents’ mis­takes.

The pre­vail­ing prac­tice of birth reg­is­tra­tion adopted to com­ply with the fatwa rul­ing says a child born il­le­git­i­mately, in­clud­ing one born less than six months after its par­ents’ mar­riage, can­not bear the sur­name of the fa­ther, even if the fa­ther ac­knowl­edges that the child is his.

What would ap­pear in the col­umn for the fa­ther’s in­for­ma­tion is “Ti­ada mak­lumat” (No in­for­ma­tion), and the child is to take “Ab­dul­lah” in lieu of his fa­ther’s name.

Of­fi­cially and openly recog­nised il­le­git­i­mate and af­fil­i­ated with “Ab­dul­lah” or sim­ply a blank space where one’s fa­ther’s name should ap­pear could tan­ta­mount to a life­time re­jec­tion, dis­crim­i­na­tion and con­dem­na­tion for these chil­dren.

Yet, re­ac­tions from the com­ments on the court’s de­ci­sion by some Mus­lim schol­ars con­veyed the mes­sage that the im­pli­ca­tions of the rul­ings on the lives of these chil­dren are a non-is­sue.

One of the re­sponses from the read­ers that these chil­dren should not feel hu­mil­i­ated be­cause they are not to blame sim­ply hides the story of moral and so­cial ex­clu­sion and dis­crim­i­na­tion.

The so­cial stigma at­tached to being la­belled anak luar nikah or anak haram, and its le­gal recog­ni­tion through the child’s name could be un­bear­able for the women and their fam­i­lies.

The ris­ing num­ber of aban­doned ba­bies should trig­ger a re­flec­tion over whether our treat­ment of this is­sue is con­tribut­ing to­wards baby dump­ing, in­stead of deter­ring promis­cu­ity and other mis­con­duct.

Through no fault of their own, these chil­dren are de­prived of a fa­ther’s care and sup­port, and in other cases, are given away for adop­tion.

While the Is­lamic hukum or rules on lin­eage, in­her­i­tance and mar­riage cus­to­di­an­ship in­volv­ing chil­dren born out of wed­lock are to be ob­served, we can­not turn a blind eye to the mat­ter.

Preser­va­tion of one’s dig­nity and non-dis­crim­i­na­tion are ba­sic Is­lamic tenets that must be pre­served and up­held.

Le­gal tech­ni­cal­i­ties aside, let us not lose sight of the “guardrail” in any de­ci­sion af­fect­ing a child — the child’s best in­ter­ests must al­ways be the guid­ing prin­ci­ple.

This em­bod­ies the very essence of the con­cept of jus­tice and fair­ness that un­der­lies re­li­gious and so­cial val­ues, in­clud­ing those of Is­lam and Mus­lims.

Re­gard­less of one’s faith or the so­cial norms, it can never be fair or be in the best in­ter­ests of a child when it is dis­crim­i­nated against.

As Mus­lims, we have been re­minded by our Prophet in one of his say­ings to “Fear God and treat your child fairly” (Sahih Bukhari and Mus­lim). Above all, the Qu­ran pro­vides ex­plic­itly that “no bearer of bur­den will bear the bur­den of an­other” (35:18).

Dur­ing field­work in East Malaysia re­cently, some of my re­spon­dents said they would rather that the births of their chil­dren were un­reg­is­tered than be forced to ac­cept the name “Ab­dul­lah” as their chil­dren’s sur­name.

Such a pref­er­ence is due to the stigma as­so­ci­ated with il­le­git­i­macy that leaves chil­dren born out of wed­lock with no proof of con­nec­tion to their par­ents or coun­try of birth.

The par­ties in­volved should not treat this is­sue as a zero-sum le­gal bat­tle be­tween syariah and civil courts. In­stead, the au­thor­i­ties and other stake­hold­ers should ex­plore ef­fec­tive mea­sures in light of the core Is­lamic val­ues of jus­tice with­out sidestep­ping the ap­pli­ca­ble Is­lamic rul­ings on this sub­ject.

One pro­posal is for the Na­tional Reg­is­tra­tion Depart­ment to cre­ate a reg­is­ter of birth records that keeps con­fi­den­tial sen­si­tive in­for­ma­tion such as the fact that a child was born out of wed­lock. This in­for­ma­tion, for pur­poses of en­sur­ing that the lim­its placed by the rel­e­vant Is­lamic rules on lin­eage, in­her­i­tance and mar­riage are ob­served, should be shared only with the rel­e­vant au­thor­i­ties and agen­cies.


In any de­ci­sion af­fect­ing a child, the child’s best in­ter­ests must al­ways be the guid­ing prin­ci­ple.

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